(Last Updated: November 5, 2017)
This Non-Disclosure, Confidentiality, Non-Competition, and Non-Solicitation Agreement (“Agreement”) is entered into on the date the user had first seen the Site (“Effective Date”), by and between the user of the Site (“Contractor” or “You”) and Tutors for Charity LLC, having a principal office located at 4571 Haskell Avenue, Suite 12, Encino, California 91436 (“Tutors”). Tutors and Contractor shall be collectively referred to in this Agreement as the “Parties”.
WHEREAS: For their mutual benefit, the Parties are considering entering into negotiations in order to participate in a contractual relationship;
WHEREAS: As a condition of entering into such negotiations and furthermore such contractual relationship, Tutors has required that the Contractor to enter into this Agreement;
WHEREAS: The acceptance of this Agreement will in no way guarantee that the Parties shall enter into said negotiations nor said contractual relationship, but is, again, required by Tutors for consideration to enter said negotiations and furthermore said contractual relationship;
NOTWITHSTANDING whether the Parties enter into such negotiations or furthermore such contractual relationship, the terms and conditions of this Agreement shall nonetheless remain in full force and effect for the duration of the Term (as it is defined herein);
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. Confidential and/or Proprietary Information. “Confidential and/or Proprietary Information” as used in this Agreement shall mean all information disclosed by Tutors to the Contractor, in any form and at any time, whether prior or subsequent to the Effective Date of this Agreement, whether transmitted orally, visually, or in writing, regardless of the presence or absence of confidential and/or proprietary marking, including all information about Tutors and its customers, customer prospects, distributors, vendors and suppliers that is not generally known outside of Tutors, which the Contractor will learn of in connection with any contractual relationship with Tutors. Confidential and/or Proprietary Information may include, without limitation, (a) the terms of this Agreement, except as necessary to inform a subsequent employer of the restrictive covenants contained herein and/or the Contractor’s attorney, spouse, or professional tax advisor only on the condition that any subsequent disclosure by any such person shall be considered a disclosure by the Contractor and a violation of this Agreement; (b) Tutors’ business policies, finances and business plans, present and projected; (c) Tutors’ present, planned and/or contemplated products, formulations and processes, and derivatives thereof, proprietary technology, know-how, data, designs, drawings, inventions, developments, specifications, research, documents, patent applications, trade secrets, ideas, concepts, products, processes, prototypes, works in process, intellectual property, proprietary information and data, technical or engineering information and specifications; (d) Tutors’ organization charts and employee lists, customer and client lists, customer prospect lists, distributor lists, supplier lists, vendor lists, derivatives of those charts and lists, and the informational contents of those charts and lists, actual or prospective customers, client relationships, business affiliations, marketing information and data, financial information and data; and any other information regardless of its form, means of communication or source.
2. Exceptions. Confidential and/or Proprietary Information shall not include information that: (a) is or becomes generally available to the public other than by the fault of the Contractor; (b) becomes available to the Contractor on a non-confidential basis from a source other than Tutors that has rights in such information, provided that the source does not have a duty of confidentiality to Tutors with respect to the disclosed information or is otherwise prohibited from transmitting that information by a contractual, legal or other obligation; (c) the Contractor can demonstrate, by written records, was previously known to it or was independently developed by the Contractor prior to receiving Confidential and/or Proprietary Information from Tutors; or (d) is required to be disclosed to a governmental entity or agency in connection with seeking any governmental or regulatory approval, or pursuant to the lawful requirement or request of a governmental entity or agency, or otherwise required to be disclosed by law, provided however that any information required to be disclosed under this paragraph shall only be disclosed pursuant to an appropriate protective order or confidentiality agreement.
3. Receipt and Use of Confidential and/or Proprietary Information. All Confidential and/or Proprietary Information shall be received, held in confidence, and used only in accordance with the terms of this Agreement and only on a need to know basis in order to properly and appropriately carry out the responsibilities under and contract between the Contractor and Tutors. The Contractor shall not use the Confidential and/or Proprietary Information for the Contractor’s own independent benefit or to the detriment of Tutors, and shall not permit any other person or party to use the Confidential and/or Proprietary Information for his, her or its independent benefit or to the detriment of Tutors.
4. Protection and Dissemination of Confidential and/or Proprietary Information. Except as expressly permitted in this Agreement or by written consent of Tutors, the Contractor shall not disclose any Confidential and/or Proprietary Information to any third person or party, except as necessary to perform the Contractor’s obligations under any contract between the Contractor and Tutors. The Contractor shall protect the confidentiality of Tutors’ Confidential and/or Proprietary Information with not less than reasonable efforts. The Contractor shall endeavor in good faith to obtain written confidentiality agreements substantially similar to this Agreement from any person or party to whom Tutors Confidential and/or Proprietary Information is disclosed pursuant to this Agreement.
5. Ownership of Confidential and/or Proprietary Information. Except as expressly provided in this Agreement, no right, title, license (express or implied) or interest in the Confidential and/or Proprietary Information of Tutors is granted to the Contractor, nor shall this Agreement grant the Contractor any rights in or to Tutors’ Confidential and/or Proprietary Information other than the rights to review such Confidential and/or Proprietary Information as permitted by this Agreement solely for the purpose of carrying out the purpose of any contract between the Contractor and Tutors. The Contractor may not use the Confidential and/or Proprietary Information for any purpose other than to perform the requirements of any contract between the Contractor and Tutors.
The Parties agree that all intellectual property, trade secrets, and related material, including any relevant registrations or applications for registration, and rights in any patent, copyright, and/or trademark that is developed or produced under this Agreement is a “work made for hire”, and will be the sole property of Tutors, the use of which by Tutors will not be restricted in any manner.
6. Compelled Disclosure. If the Contractor is required by judicial or administrative process to disclose any Confidential and/or Proprietary Information of Tutors, the Contractor shall promptly notify Tutors of such request or requirement so that Tutors may seek an appropriate protective order or confidentiality agreement, or waive compliance with this Agreement. Tutors shall be deemed to have waived compliance with this Agreement without further action if the Contractor has given notice in accordance with the terms hereof and Tutors has had a reasonable opportunity to seek a protective order or confidentiality agreement.
7. Injunctive Relief. The Contractor acknowledges and agrees that should the Contractor breach any provision of this Agreement, Tutors will suffer irreparable damages, and money damages may be inadequate to remedy any such breach. Therefore, Tutors shall be entitled, in addition to all other remedies available to it at law or in equity, to seek equitable relief, including specific performance and injunctive relief, to enforce any provision hereof and to restrain the Contractor from using or disclosing, in whole or in part, directly or indirectly, any Confidential and/or Proprietary Information.
8. Term and Survival of Confidentiality. The term of this Agreement shall commence on the execution date of this Agreement and shall continue throughout the period of any contractual relationship. The Contractor’s obligations of confidence under this Agreement shall survive and continue for a period of ten (10) years after the conclusion of any such contractual relationship, or until the Contractor receives written authorization from Tutors to use or disclose such Confidential and/or Proprietary Information.
9. Return of Confidential Information. Immediately upon written request by Tutors, the Contractor shall return (or destroy with Tutors’ prior written consent) Confidential and/or Proprietary Information of Tutors, all reproductions and compilations thereof, and all other information based thereon.
10. Non-Compete Covenant. The Contractor covenants and agrees that, during the term of any contractual relationship with Tutors and for two (2) years after the termination thereof, regardless of the reason for the termination, the Contractor will not, directly or indirectly, engage in any business that competes with Tutors. This covenant shall apply to the geographical area that includes the United States.
11. Non-Solicitation Covenant. The Contractor covenants and agrees that, during the term of any contractual relationship with Tutors and for two (2) years after the termination thereof, regardless of the reason for the termination, the Contractor will not, directly or indirectly, solicit or attempt to solicit any business from, or attempt to sell, license or provide the same or similar products or services as are now provided to or by, any of Tutors’ customers, customer prospects, distributors, vendors or suppliers. Further, the Contractor covenants and agrees that during the term of any contractual relationship with Tutors and for two (2) years after the termination thereof, regardless of the reason for the termination, the Contractor will not directly or indirectly solicit, induce or attempt to induce any employee of Tutors to terminate his or her employment with Tutors.
12. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed enforceable, without production of the others. A facsimile or digitally transmitted signature shall be accepted as original.
13. Severability. If any provision of this Agreement or the application thereof in any particular circumstance is held illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall not affect any other provision hereof. This Agreement shall, in such circumstances, be deemed modified to the extent necessary to render enforceable the provisions hereof to the fullest extent permitted by law.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives. Use of the Site in any manner constitutes full acceptance of our NDA and is legally equivalent to providing an electronic signature consenting to our Agreement.